Interscope v. RodriguezOn August 23, 2007, the RIAA filed an amended complaint. Interestingly, the amended complaint (a) leaves out the phrase "making available", (b) adds a phrase that plaintiffs "identified an individual" distributing files, even though their expert witness's deposition testimony in UMG v. Lindor specifically negated any claim that "an individual" was detected, and (c) adds a curious phrase that the defendant was "the individual responsible for that IP address at that date and time", a phrase which would be of dubious significance in a copyright infringement context.On August 30, 2007, the case was reassigned to Judge Hayes, due to Judge Brewster's impending retirement.Amended Complaint*August 30, 2007, Order of Reassignment*

12 comments:

12. Users of P2P networks who distribute files over a network can be identified by using Internet Protocol ("IP") addresses because the unique IP address of the computer offering the files for distribution can be captured by another user during a search or a file transfer.

This is so wrong for so many reasons:

First, USERS cannot be identified this way at all. Users don't have IP addresses. Computers have IP addresses.

Second, when a computer is connected through a NATting (Network Address Translation) router ANYWHERE along the route between the two connected computers, the originating IP address is changed.

Third, MAC addresses aren't transmitted, and therefore cannot be used for identification.

Fourth, any Proxy computer that might exist along the route will change the originating IP address in a manner undetectable to the computer at the far end.

Fifth, file directory share lists are not always generated by the computer containing the files in all P2P systems. Superpeers may cache directory listings for better response in the system overall, and return directories of files that have never existed on their machines.

Sixth, files listed in a file directory may not actually be available. Ghost Files are a known phenomena in some, if not many, P2P systems.

Seventh, a list of files does not identify any specific user, does not indicate that the files contain what their names may imply, and does not provide proof that any of these files were ever distributed illegally to any other user!

None of this should be enough to drag any American citizen into court. Nor is there any proffered evidence of continuing infringement. In fact, continuing infringement doesn't make sense, since any user receiving warning of a lawsuit is likely to have stopped all such activities immediately. If anything, this makes it even more likely that the person being sued is either not the actual infringer, or totally unaware that their own computer is actually offering up a share directory of files.

It is also unlikely that ANYBODY has "continuously" shared files, since most computers are shut off when not in use. That is, unless "continuously" means something different legally than it does in the whole rest of the civilized world.

Plaintiffs believe that such acts of infringement are ongoing. Please state the reason AND EVIDENCE for such a belief.

Judge Brewster's order of dismissal without prejudice was crystal clear on what caused the complaint to be insufficient.

"Plaintiffs ... must present at least some facts to show the plausibility of their allegations.... However, other than the bare conclusory statement ... Plaintiffs have presented no facts that would indicate that this allegation is anything more than speculation. The complaint is simply a boilerplate listing ... without any facts pertaining specifically to the instant Defendant." (Emphasis is mine.)

Than anti-lawyer dig clearly violated comment policy #7, but I'll let it go this time due to your outstanding service to this blog in the past. In the future, though, please try to confine your anti-lawyer attacks to the RIAA lawyers rather than the entire profession.

However, your obsession with facts cannot be so readily forgiven. Please try to see things from RIAA Richard's perspective. If he were limited to (a) the facts and (b) the law he would be out of work.

AMD: while your points are correct, your long explainations are (as I assume without actually knowning any US Judge personly) much to complicated for the average, non-computer geeky ones among them. to explain to those "non-geeky"-judges, that the RIAA lawyers do not tell the truth in their boilerplate complains (no matter if they amend an IP address and a timestamp or not!) when they claim that they "identified an individual", you must use less technical examples and descriptions:For example with a comic strip;http://shoecomics.com/archives/shoe_daily/shoe_daily050707.jpg

Technical question:"On August 23, 2007, the RIAA filed an amended complaint.Trusting my favorite online help when in doubt about some vocabulary ( http://www.dict.cc/english-german/to+amend.html ) As I understand that, what RIAA did here was what they also routinely do in those "first the parents then the children" cases to safe themself some money from filing fees; they amend complaints they paid one times a fee for.

Me now wonders: If I understand it correctly the judge dismissed the case they paid the $350 for.

Is it proceduraly ok that they allegedly just amend their (dismissed) complaint instead of filing a real new case with paying filing fees for a new case too?

Is it my imagination, or is there a new emphasis on the concept of 'copying' (i.e., authorization to copy) in this pleading? Know that these points have probably been made time and time again, but I just have to raise them.

'Under the Copyright Act a copyright owner has “exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; . . . ;(3) to distribute copies or phonorecords of the copyrighted work to the public . . . .”'

The Copyright Act CLEARLY defines 'copies' as material objects, just as it does for 'phonorecords'. To reproduce something entails making a complete and faithful recreation of that material object. A digital image embodied in a computer file that, through the use of computer software, can be made to replicate to varying degrees and quality the aural sound of a phonorecord is NOT a reproduction, by definition, as it is NOT a material object. The act further states that 'The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 IS LIMITED to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording.' Therefore, the entirety of assertions associated with 'authorization to copy' are baseless. It goes without saying that, since they are not material objects in the sense of what the Copyright Act has defined copies and phonorecords to be, the notion of distribution of 'non-material objects' is meaningless.

Ignoring the unwarranted linkage of 'downloading' with 'reproduction' or the over-dramatic reference to unsubstantiated 'billions', I would like to comment on 'perfect digital copies'. The only thing that could even closely be defined to be a 'perfect' copy of the digital audio that is 'stored' on a CD is a .wav file that retains the full PCM encoding of the original digital audio. Anything less than that is NOT a 'perfect digital copy'. NO MP3 file is a perfect copy - it is the result of a 'lossy' conversion and you cannot obtain the original .wav file through reconversion. [There are lossless formats in use (e.g., .flac, .mp4, .ape) that allow for faithful reconversion back to the .wav form of the digital audio, but none of the alleged infringers were sharing these types of files; they were all MP3 encoded files. At best, the digital files that were alleged to have been shared would have to be viewed as derivative works ('derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or QUALITY').

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove